PUBLISHED OPINION
Case No.: 95-0388-CR
Complete
Title
of
Case:STATE OF
WISCONSIN,
Plaintiff-Appellant,
v.
ROBERT J. JESKE,
Defendant-Respondent.
Submitted
on Briefs: October 9, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: October 26, 1995
Opinion
Filed: October
26, 1995
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Waupaca
(If
"Special" JUDGE: John
P. Hoffmann
so
indicate)
JUDGES: Eich,
C.J., Sundby and Vergeront, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the plaintiff-appellant the
cause was submitted on the brief of James E. Doyle, attorney general,
and Mary E. Burke, assistant attorney general, of Madison.
Respondent
ATTORNEYSFor the defendant-respondent the
cause was submitted on the brief of Gerald P. Boyle of Milwaukee.
|
COURT OF APPEALS DECISION DATED AND RELEASED October
26, 1995 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0388-CR
STATE OF WISCONSIN IN COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Appellant,
v.
ROBERT
J. JESKE,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Waupaca County: JOHN P. HOFFMANN, Judge. Affirmed.
Before
Eich, C.J., Sundby and Vergeront, JJ.
EICH,
C.J. The State of Wisconsin appeals
from an order denying its motion in limine to permit introduction of
"other-acts" evidence in this child sexual assault case.
Jeske
was charged with two counts of first-degree sexual assault: sexual contact with
a person who has not attained the age of 13 years, in violation of
§ 948.02(1), Stats. The charges stemmed from allegations that,
after engaging the victim, Tammy L., in conversations of a sexual nature, Jeske
touched her breasts and vaginal area.
The evidence the State sought to introduce concerned similar suggestive
conversations with Tammy's sister, Janet L., during the preceding year.
The
trial court denied the State's motion, concluding that Jeske's conversations
with Janet L., being "words" rather than "acts," were not
admissible under § 904.04(2), Stats.,
which allows evidence of "other crimes, wrongs, or acts" if offered
for certain purposes.[1] The court also concluded that even if §
904.04(2) applied to Jeske's conversations with Janet, they would not be
allowed into evidence because: "[E]ven if it did [come under the statute],
I ... think the evidence is so prejudicial that it would outweigh any probative
value because it would ... show bad character by the way that he talks
...." The issue is whether the
trial court erroneously exercised its discretion in so ruling. We think it did not and we affirm the order.
The
facts are not in dispute. Jeske, a high
school mathematics teacher and wrestling coach, was acquainted with Tammy's
family through her older brother's participation in the school wrestling
program. In early 1993, Tammy and her
family met Jeske at a restaurant following a wrestling meet and Jeske, after
hugging Tammy, who was only in sixth grade at the time, declared that he was
going to take her to the high school prom.
Later in the evening, Jeske asked Tammy "[what she wanted] him to
do on prom night," to which she replied: "Dance."[2] According to Tammy, Jeske kept
"bugging" and "bothering" her, following her around the
restaurant and pressing her about what she wanted to do on prom night, and she
finally responded with what she thought he wanted to hear: to lose her
virginity. Jeske said, "Well, you
must know what you want," adding, "You must have fantasies or
something," and asking Tammy, "Do you want to lose your virginity
with me?" In order to "get away
from him," Tammy said, "Well, I guess."
Tammy
rode to another restaurant with Jeske (her parents were to follow them in
another car a few minutes later).
Despite the sexual nature of his questions to her and his persistence in
asking them, she trusted him and didn't think he would "do anything"
to her while they were alone. When
Tammy got into Jeske's truck, she said he "started up" again, saying,
"Now is your chance to tell me what you want to do on prom night,"
and then asking, "you want to lose your virginity with me?" The restaurant was closed when they arrived
and Jeske parked across the street.
Saying, "[T]his is between me, you, and the goal post," Jeske
took Tammy's hand, held it for several seconds, and then put his arm around
her. Jeske asked Tammy: "[I]f you
should ever want to lose your virginity before [prom night], what should you
do?" to which she replied: "I don't know. Don't do it."
"No, just tell me," Jeske said, and placed his hand on Tammy's
left breast, saying, "[K]eep your heart safe." Then, pushing his hand between her crossed
legs and holding it there for several seconds, he said: "Keep your
virginity safe."
Jeske
was charged with sexually assaulting Tammy after she told others about the
incident. In a pretrial motion, the
State sought an order allowing evidence concerning several suggestive comments
Jeske had made to Tammy's older sister, Janet, during the preceding year. No one contends that Jeske had any physical
contact of a sexual nature with Janet at any time.
The
State wanted the court to allow Janet to testify that, beginning in the spring
of 1992, Jeske made several sexually suggestive comments to her. According to Janet, Jeske made a
"bet" with her that if her brother were to qualify for the state
wrestling tournament that year, Janet--who was then fifteen--would attend her
junior prom with Jeske. She said that,
as the 1992-93 school year progressed, Jeske would ask her whether she
remembered making the bet, telling her at one point, "It could get both of
us in a lot of trouble." Sometime
later, when he again asked her about the "bet," and made a comment
about "the importance of what often happened on prom night," Janet
asked him what the bet was all about, to which he replied that if her brother
qualified for the state wrestling tournament, the two of them (Jeske and Janet)
"would have one night in the sack together." He then asked Janet whether she was a virgin
and said he would be honored to be her first sexual partner. He told her she could pay the bet that night
and suggested that he take her to his house where "they could do
it." When Janet refused, he
suggested settling the bet in his hotel room during the state tournament in
Madison. After this conversation, Janet
began avoiding Jeske and nothing further transpired between them.
The
State argued to the trial court that the evidence of Jeske's remarks to Janet
was admissible under § 904.04(2), Stats.,
as relevant to his motive, intent and plan to sexually assault Tammy. So-called other-acts evidence is admissible
under a two-part test. First, the trial
court determines the admissibility of the evidence under § 904.04(2): whether
it is offered for a purpose other than to prove the defendant's
character and that he or she acted in conformity therewith. State v. Clark, 179 Wis.2d
484, 491, 507 N.W.2d 172, 174 (Ct. App. 1993).
As indicated above, evidence is not excluded under § 904.04(2) if it is
"offered for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident." The exceptions listed
in the statute are neither mutually exclusive nor exhaustive. State v. Plymesser, 172 Wis.2d
583, 592, 493 N.W.2d 367, 371 (1992).
Rather, they "`slide into each other ... [and] are impossible to
state with categorical precision ....'"
Id. (quoted source omitted).
If
the trial court rules that the evidence qualifies under one of the exceptions
stated in § 904.04(2), Stats.,
the court must then determine whether its probative value is substantially
outweighed by the danger that its admission would result in unfair prejudice to
the other party. Clark, 179 Wis.2d at 491, 507 N.W.2d at 174.
Each
of the two steps contemplates a discretionary determination by the trial
court. See Plymesser,
172 Wis.2d at 591-92, 493 N.W.2d at 371-72.
In Burkes v. Hales, 165 Wis.2d 585, 590-91, 478 N.W.2d 37,
39 (Ct. App. 1991), we discussed the limited scope of our review of a trial
court's discretionary rulings:
A
court exercises discretion when it considers the facts of record and reasons
its way to a rational, legally sound conclusion. It is "a process of reasoning" in which the facts and
applicable law are considered in arriving at "a conclusion based on logic
and founded on proper legal standards."
Thus, to determine whether the trial court properly exercised its
discretion in a particular matter, we look first to the court's on-the-record
explanation of the reasons underlying its decision. And where the record shows that the court looked to and
considered the facts of the case and reasoned its way to a conclusion that is
(a) one a reasonable judge could reach and (b) consistent with applicable law,
we will affirm the decision even if it is not one with which we ourselves would
agree.
It need not be a
lengthy process. While reasons must be
stated, they need not be exhaustive. It
is enough that they indicate to the reviewing court that the trial court
"undert[ook] a reasonable inquiry and examination of the facts" and
"the record shows that there is a reasonable basis for the ... court's
determination." Indeed,
"[b]ecause the exercise of discretion is so essential to the trial court's
functioning, we generally look for reasons to sustain discretionary
decisions."
(Citations, footnotes and quoted source omitted.)
In
simplest terms, "discretion" contemplates a reasoning process which
considers the applicable law and the facts of record, leading to a conclusion a
reasonable judge could reach; "and while it may be that we would have
decided the [question] differently, that is not the test; it is enough that a
reasonable judge could have so concluded ...." Schneller v. St. Mary's Hosp. Medical Ctr., 155
Wis.2d 365, 374, 376, 455 N.W.2d 250, 254, 255 (Ct. App. 1990), aff'd,
162 Wis.2d 296, 470 N.W.2d 873 (1991).
Because,
as the above authorities indicate, "a trial court in an exercise of its
discretion may reasonably reach a conclusion which another judge or another
court may not reach," Hartung v. Hartung, 102 Wis.2d 58, 66,
306 N.W.2d 16, 20-21 (1981), we have said that whenever a trial court has
discretion in a matter, it has "`a limited right to be wrong ... without
incurring reversal.'" State
v. McConnohie, 113 Wis.2d 362, 370, 334 N.W.2d 903, 907 (1983) (quoting
from M. Rosenberg, Appellate Review of Trial Court Discretion, 79 F.R.D.
173, 176 (1979)). The court's
discretionary determinations are not tested by some subjective standard, or
even by our own sense of what might be a "right" or "wrong"
decision in the case, but rather will stand unless it can be said that no
reasonable judge, acting on the same facts and underlying law, could reach the
same conclusion.
While
we might well have granted the State's motion had we been in the trial court's
position, concluding that the evidence was relevant and, further, that its
probative value was not substantially outweighed by the possibility of unfair
prejudice, the well-established principles of law we have discussed above
require us to sustain the court's exercise of its discretionary authority to
allow the evidence.
We
note first that the trial court erred when it initially concluded that the
evidence did not fit any of the statutory exceptions found in the other-acts
statute, § 904.04(2), Stats.,
because it concerned only Jeske's words and not his acts. It is well established that verbal
statements may be admissible as other-acts evidence even when not acted
upon. See Day v. State,
92 Wis.2d 392, 404-05, 284 N.W.2d 666, 672-73 (1979) (seeking sexual
intercourse with other young girls admissible to show preconceived plan); State
v. Tarrell, 74 Wis.2d 647, 658, 247 N.W.2d 696, 703 (1976) (obscene
remark to girl admissible to show scheme or motive in child sexual assault); State
v. Bergeron, 162 Wis.2d 521, 530-31, 470 N.W.2d 322, 325-26 (Ct. App.
1991) (use of an alias admissible to show intent to cover up his participation
in a sexual assault and also as part of the background of the case).
Our
disagreement with the trial court's conclusion as to the relevancy of Janet's
testimony under § 904.04(2), Stats.,
does not warrant reversal, however, because the court went on to conclude that,
even if the evidence were relevant under one or more of the exceptions to §
904.04(2), it would still be disallowed because its probative value was
outweighed by the danger of unfair prejudice.
As indicated, the court based that ruling on its belief that to allow
the evidence of Jeske's suggestive remarks to Janet would permit the jury to
infer that he was a person of such low character that he must have sexually
assaulted Tammy several months later.
In
State v. Mordica, 168 Wis.2d 593, 605, 484 N.W.2d 352, 357 (Ct.
App. 1992), we recognized that unfair prejudice occurs
where the proffered evidence, if introduced, would have
a tendency to influence the outcome by improper means or if it appeals to the
jury's sympathies, arouses its sense of horror, provokes its instinct to punish
or otherwise causes a jury to base its decision on something other than the
established propositions in the case.
Stated more concisely, unfair prejudice means a tendency to influence
the outcome by improper means.
(Citations omitted.)
The
State renews the argument made to the trial court: that Jeske's statements to
Janet should be admitted under § 904.04(2), Stats., as evidence of his "motive, intent and plan in
sexually assaulting Tammy." The
supreme court stated in State v. Friedrich, 135 Wis.2d 1, 29, 398
N.W.2d 763, 775 (1987), that the purpose of the several exceptions to the rule
of § 904.04(2) "is to draw a distinction between a plan or scheme and
a mere `propensity or leaning' toward some forbidden act," making the
former admissible and the latter inadmissible.
After reviewing the record in this case, we cannot say that no
reasonable judge could reach the conclusions reached by the trial court: (1)
that allowing Janet's proffered testimony could result in a danger of unfair
prejudice to Jeske by putting evidence before the jury that because he made
similar suggestive remarks to Tammy's sister a year or so earlier, he must have
culminated similar advances to Tammy by sexually assaulting her; and (2) that
that danger substantially outweighed the probative value of the evidence.
By
the Court.—Order affirmed.
[1] Section 904.04(2), Stats., reads:
Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show that the person acted in conformity therewith. This subsection does not exclude the
evidence when offered for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.